IMA-NA filed comments yesterday on EPA's CERCLA §108(b) notice of proposed rulemaking.This rulemaking would establish financial assurance requirements for Superfund liability at individual hardrock mining facilities.These financial assurances have the potential to be extremely costly . . . as in millions of dollars per industrial minerals facility.The IMA-NA comments are specific to the industrial minerals sector.IMA-NA also have been participating in a coalition of other hardrock mining trade associations, as well as trade associations representing industry sectors that EPA has indicated it likely next would subject to CERCLA §108(b) financial responsibility requirements (e.g., chemicals manufacturing, petroleum and coal products manufacturing, electrical power generation, transmission and distribution). The coalition comments also are attached for your information.

Please join us for June's First Friday's Ask IMA today, June 2nd at 1:00pm EST. IMA-NA staff will update members on ongoing legislative and regulatory issues, including percentage depletion, CERCLA 108(b), and the recently released full Presidential budget. In addition to updating members on lobbying efforts and issues of concern for the industry, staff will also be discussing the upcoming 3rd Annual North American Minerals Day and our partnership with IMA-Europe for the 10th Annual European Minerals Day.

In a letter to Acting Assistant Secretary Patricia Silvey, IMA-NA expressed concerns to MSHA about a purported change in agency enforcement policy related to underground escapeways and refuges.IMA-NA underground producer members have reported a possible change in agency policy reinterpreting the plain language of 30 CFR §57.11050.The new interpretation would require two escapeways from every working place, rather than the mine’s lowest levels, and impose new requirements regarding the location of refuge areas.IMA-NA expressed the concern that such deviation from the plain language of the regulation could constitute rulemaking through policy interpretation rather than through the required notice and comment rulemaking.IMA-NA requested that the agency convene a meeting of impacted stakeholders to discuss the matter before final agency action is taken.

Yesterday, Congressman Mick Mulvaney (R-SC5) was sworn in as the new Director of the Office of Management and Budget (OMB). The Senate confirmed Mulvaney by a narrow margin of 51-49, largely along party lines. Senator John McCain was the only Republican to vote against the confirmation, a decision that was made due to Mulvaney's past opposition to budget increases for the military. Under the leadership of a fiscal hawk, OMB will play an important role in the Trump Administration's plans to rein in overly burdensome regulations. The Office of Information and Regulatory Affairs (OIRA), in OMB, which conducts reviews proposed regulations and evaluates the economic impacts, is expected to fulfill its role as a check on regulatory overreach more effectively in the new Administration. The confirmation of Mick Mulvaney also allows for OMB to begin reviewing agency budget proposals, a process that has been on hold while there was not a Director in place.

The Senate confirmed Scott Pruitt to head the Environmental Protection Agency (EPA) largely along party lines with a final vote of 52-46. Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia broke with the Democratic Party and voted for Pruitt while Susan Collins of Maine voted against his confirmation. Pruitt's confirmation is seen as a coup for the Administration and Republican Party who criticized the EPA loudly for regulatory overreach under the Obama Administration. Pruitt has a long history of legal challenges to various EPA regulations and his confirmation has been opposed by environmentalists who view him as an enemy to the stated goals of the EPA. For industry, Pruitt's confirmation is another signal that the regulatory environment in the United States will become substantially friendlier to business and traditional industrial developments.

As Congress continues using the Congressional Review Act (CRA) to revoke various regulations from the last year of Obama's Administration these two confirmations will be shaping the new Administration's regulatory agenda in its new direction.

IMA-NA will be convening First Friday's Ask IMA this Friday, February 3rd at 1:00pm EST. Following the Inauguration on January 20th, Donald Trump's Administration is officially underway. IMA-NA staff will take the opportunity this Friday to review the legislative, regulatory, and executive actions that could impact our industry in the coming months. We'll discuss IMA-NA's upcoming actions to represent the interests of the industrial minerals industry and answer any questions participants have on recent happenings in DC.

EPA held a previously announced Webinar on its proposed rule on CERCLA (Superfund) Section 108(b) financial assurances for hardrock mining facilities.This Webinar specifically addressed the formula EPA proposes to use to calculate the financial assurances that would be required to be posted by the covered universe of hardrock mining facilities.That covered universe is somewhat nebulous.While few industrial minerals operations are specifically identified in the proposed rule, the scope of the proposal could be interpreted to cover industrial minerals facilities not specifically identified.As the cost of providing the proposed financial assurances almost certainly would total millions of dollars, it behooves industrial minerals operations to consider their potential liability if they are deemed to be part of the covered universe.IMA-NA intends to address the issue of potential coverage of industrial minerals operations in comments due to be filed by March 13, 2017.

The EPA Webinar PowerPoint presentation can be accessed by clicking here.

The proposed formula for calculating financial assurances is attached.

On January 20, 2017, Assistant to the President and Chief of Staff Reince Priebus issued a Memorandum for the Heads of Executive Departments ordering a regulatory freeze pending review.The memorandum is similar to those issued by previous presidential administrations when a new president takes over from an incumbent.Among its provisions, with certain exceptions:

Send no regulation to the Office of the Federal Register (OFR) until a department or agency head under the new administration reviews and approves the regulation;

Withdraw regulations sent to the OFR, but not yet published, for review and approval;

Temporarily postpone for 60 days the effective date of regulations that have been published in the OFR, but have not yet taken effect, for purposes of reviewing questions of fact, law and policy they raise.For those regulations that raise substantial questions of law or policy, notify the Director of the Office of Management and Budget (OMB); and

Exclude from the actions above any regulations subject to statutory or judicial deadlines and identify such exclusions to the OMB Director.

One MSHA final rule potentially affected by the memorandum is the Agency’s final rule on Examinations of Working Places in Metal and Nonmetal Mines.The final rule was not published in the Federal Register until January 23.At the very least, its effective date is likely to be extended from May 23, 2017, for an additional 60 days.

The Mine Safety and Health Administration (MSHA) has announced a final rule that amends the Agency’s standards for the examination of working places in metal and nonmetal mines.The final rule requires: 1) that an examination of the working place be conducted before miners begin working in that place, 2) that operators notify miners in the affected area of any conditions found that may adversely affect their safety or health, 3) that operators promptly initiate corrective action, and 4) that a record be made of the examination.The final rule also requires that the examination record include: 1) the name of the person conducting the examination, 2) the location of all areas examined, 3) a description of each condition found that may adversely affect the safety or health of miners, and 4) the date of the corrective action.In addition, the final rule requires that miner operators make the examination record available for inspection by authorized representatives of the Secretary and miners’ representatives and provide a copy upon request.The final rule will become effective on May 23, 2017.It is scheduled to be published in the Federal Register on January 23, 2017.In the meantime, the 83-page rule can be viewed on the MSHA Website.To view the final rule, click here.

IMA-NA filed comments on the Government of Canada's Notice of Intent to Develop Regulations Respecting Asbestos.The comments respond to the notice of intent published in the Canada Gazette on December 17, 2016.The next step in the development of these regulations will include consultations with representatives of provincial and territorial governments, industry, non-governmental organizations, the public and other stakeholders.Input received during these consultations will be considered during the development of the regulations.These consultations will take place in the spring of 2017, and additional information will be available on the following Web page:http://www.ec.gc.ca/toxiques-toxics/Default.asp?lang=En&n=A183A275-1.Interested parties will have another opportunity to make written comments specific to the regulatory proposal during the mandatory consultation period that will follow publication of the proposed regulations in December 2017.

This week, the government released the Report of the Small Business Advocacy Review Panel (SBAR Panel) on the EPA's proposed rule: Financial Responsibility Requirements for the Hardrock Mining Industry under CERCLA § 108(b). The Panel reviewed the rule to assess the impact specifically on small mining operations and found the proposed rule to be lacking in provisions to protect small operations. The panel made recommendations for six areas in need of greater stakeholder input and adjustments to prevent small businesses from being unduly burdened by the rule. The Small Business Administration's (SBA) Office of Advocacy, "believes that the current approach could unnecessarily threaten the viability of small mines by use of these inflated estimates". In addition, the Office of Advocacy also questioned why the CERCLA financial assurance amounts are substantially higher than the State and FLMA's financial assurance programs. The results of the SBAR Panel echo many of IMA-NA's concerns and thoughts about the imprecision and flaws of the proposal as it currently stands.